Citizenship and Emigration Laws in India.

1. Citizenship and
Emigration Law
Hemakshi Jad

2. Nature and Scope Of Citizenship
Citizenship is the –
- State of being a citizen of a particular social, political or national community.
- Conditions or status of a citizen. With its rights and duties.
- Status of being vested with the rights, privileges and duties of citizen

3.  Relation between individual and government.
 Citizenship by Birth
 Citizenship by Descent
 Citizenship by Registration

4. Migration Temporary No strict legal Sanction
Immigration (coming in a
country)
Permanent Proper legal sanction
Emigration (going out of
country)
Permanent Proper legal sanction

5.  Maintained by the Government of India, the National Register of Citizens
(NRC) holds all the important information of the Indian citizens of Assam
required for their identification.
 It was during a parliamentary session on 20th November 2019 when Home
Minister Amit Shah declared an extension of NRC to the entire country. The
implementation of NRC across the country is expected to start after the end
of the COVID vaccination drive.

6.  Nationality and citizenship may sound like synonyms to each other, but
actually, these words are quite different.
 Definition of Nationality: The status of belonging to a particular nation.
 The nationality of a person is the place of birth; basically, it's an ethnic and
racial concept.

7.  Definition of Citizenship: The position or status of being a citizen of a particular
country.
 Citizenship is granted to an individual by the government of the country when
he/she complies with the legal formalities, so its like a judicial concept.
 In India, the Citizenship Act, 1955 prescribes five ways of acquiring citizenship:
 1. Birth
 2. Descent
 3. Registration
 4. Naturalization
 5. Incorporation of the territory

8.  Nationality can't be changed while citizenship can
 Citizenship can also be reversed while nationality can't.

9.  As we have seen both the terms, the nationality is a term used to say a
particular person's ethnicity or country of birth whereas citizenship is a legal
term we acquire as a result of legal procedures. One is acquired by birth and
the other is acquired by law.

10. Kiran Gupta vs The State Election
Commission 12 October, 2020
(i) Was the State Election Commission empowered to set aside the appellant's election
under Section 136(1) of the Bihar Panchayat Raj Act, 2006 on the ground of her not being
an Indian citizen?
(ii) Whether voluntarily relinquishing Citizenship of Nepal confers any right of Indian
Citizenship upon the appellant?
(iii) Can the appellant's voter ID Card; PAN Card; Aadhaar Card; acquiring education or
immovable property in India; having a Bank Account, function as proof of Indian
Citizenship?
(iv) Whether the appellant was disqualified from being elected to or function as Mukhiya of
the Gram Panchayat in Bihar?
(v) Can the appellant's status of Statelessness be remedied as per Indian Law?

11.  The present appeal arises from an order and judgment of the learned Single
Judge dated January 21, 2020, by which the appellant's writ petition assailing
the order of the State Election Commission dated August 30, 2019, stands
dismissed.
 The appellant's election is set aside on the ground of disqualification
contained under sub-section 1(a) of Section 136 of the Bihar Panchayat Raj
Act, 2006.

12.  The appellant, Kiran Gupta, was born and brought up in Nepal. On 18th June
2003, she solemnized her marriage with Ashok Prasad Gupta and after that
started permanently residing with him in India as his wife. It is not in dispute
that after her marriage, she, (a) got her name entered into the voters list
prepared in the year 2008 for elections to the Assembly of Bihar; (b)in her
name she has (i) an account with a bank in India, (ii) a Pan Card issued by the
Income Tax Department, and (iii) an Aadhaar Card; (c) names of her children
born out of the wedlock are registered in India under the Registration of
Births and Deaths Act, 1969 and the respective Rules framed thereunder; (d)
pursued her higher education in India; (e) purchased an immovable property
in India, vide sale deed dated 12 th December 2017. The sale stands recorded
with an entry of mutation in her name for which also she paid fee/rent to the
Government of Bihar; and (g) relinquished her Nepali Citizenship on February
24, 2016. Patna High Court L.P.A No.139 of 2020 dt.12-10-2020

13.  The issue of her nationality became the subject matter of challenge in the
year 2018 after she was elected as a Mukhiya of Gram Panchayat.
 The competent authority, i.e., The State Election Commission, set aside her
election, which action she challenged by way of a writ petition filed under
Articles 226 and 227 of the Constitution of India.

14. ISSUE 1:
 Court noted that the appellant herself acknowledged that she was born and
brought up in Nepal and wasn’t an Indian Citizen under Sections 3 and 4 of
the Citizenship Act, 1955.
 Hence, the State Election Commission was empowered to set aside her
election as Mukhiya.

15. ISSUE 2 and 4:
 For the adjudication of issue, Article 10 and 11 are reproduced as under:
 “10. Continuance of the rights of Citizenship.— Every person who is or is deemed
to be a citizen of India under any of the foregoing provisions of this Part shall,
subject to the provisions of any law that may be made by Parliament, continue to
be such citizen.
 11. Parliament to regulate the right of Citizenship by law.— Nothing in the
foregoing provisions of this Part shall derogate from the power of Parliament to
make any provision with respect to the acquisition and termination of Citizenship
and all other matters relating to Citizenship.”

16.  For the post of a Mukhiya, the person stands disqualified if she/he is not a
citizen of India.
 Only the Central Government is empowered to confer Citizenship upon the
Foreign Nationals. Petitioner admitted that she has not applied for Citizenship
under the Citizenship Act.

17.  Court also stated that the appellant’s case would fall under clause (c) of sub-section (1) of Section
5. She is married to a citizen of India and is ordinarily residing in India for the last seven years. But
then, significantly and undisputedly, she never sought Citizenship by way of registration.
 An oath of allegiance is necessarily required to be taken by the appellant. Hence, by her actions and
conduct, she precluded herself from being considered as a citizen under the Citizenship Act.
 Mere relinquishment of original Citizenship cannot be perceived as an intent of seeking Indian
Citizenship.
 The Citizenship Act does not provide for a scenario where a person residing in India, upon
relinquishing her/his original Citizenship is automatically considered to be a citizen of India.
 Hence, in Court’s opinion, the appellant failed to follow the procedure as set out in the Citizenship

18. ISSUE 3
 “Mere registration of a person’s name in the voter list, ipso facto, does not
confer Citizenship.”
 Purpose of the PAN card is to facilitate the payment of taxes to the Indian
State, which foreigners may also be required to pay.
 The eligibility criteria for obtaining an Aadhaar Card is residency in India for a
period of 182 days or more, not citizenship.
 Section 9 of the Aadhaar Act, 2016 clearly states that an Aadhaar number or
authentication thereof shall not by itself confer any right of or be proof of
Citizenship or domicile of the Aadhaar number holder.

19. Voter ID
 The Representation of People Act, 1950, also debars non-citizens from being
included in the voter list. The apex court ruled in Bhanwaroo Khan and Ors.
vs Union of India and Ors. (2002) that, “Long stay in the country and
enrolment in the voters’ list would not confer any right to an alien to
continue to stay in the country.”
 The Gauhati High Court held in 2020 that the ‘Electoral Photo Identity Card is
not a proof of citizenship’. However, a Mumbai court ruled that the voter
identity card is sufficient proof of citizenship. So, what if a foreigner with a
voter ID card casts their vote? The person would be voting without being a
citizen, negating Article 326, which is worrying.

20. Aadhaar card
 The Aadhaar card issued under Aadhaar Act, 2016 touched the 125 crore mark
even though there exist many grave privacy concerns. The eligibility criteria
to obtain it is residency in India for at least 182 days, and not citizenship.

21. PAN Card
 Also, citizenship is not a condition for having a bank account in India. Since,
to open a bank account in India, one needs to submit a set of documents
regarded as “proof of identity and proof of address.”
 The Gauhati High Court in Jabeda Begum @ Jabeda Khatun v. Union of India
& Ors. (2019), to hold that PAN and bank documents are not proofs of
citizenship.

22. Holding Property
 The Registration Act, 1908, provides for the transfer of property among
individuals. Section 17 of this law only requires that the document by which
property is transferred should be compulsorily registered.
 Therefore, names in the register are proof of ownership and not of one’s
citizenship. In Jabeda Begum, the court held that even land revenue payment
receipts do not prove citizenship.

23. PASSPORT
 A valid passport is considered proof of citizenship in the United States, but an
Indian passport holder is considered an Indian citizen overseas and may not be
considered a citizen within India.

24. What does it mean to be stateless?
 Hannah Arendt wrote in The Origins of Totalitarianism that a new group of
people, the heimatlosen or stateless, emerged from the war.
 She believed that the universalism of human rights could only be achieved
through citizenship, and described the dilemma of refugees turning from
homeless to stateless and ultimately, rightless.
 India, through the Citizenship (Amendment) Act, 2019, seeks to grant asylum
to persecuted refugees, but has applied differential doctrine over them and
failed to go beyond political stunts.

25.  The Convention Relating to the Status of Stateless Persons, 1954 and the
Convention on the Reduction of Statelessness, 1961, are the two leading
multilateral treaties against statelessness.
 While India is not a signatory to them, the duty to prevent statelessness has
been consolidated in several other international legal instruments to which
India is a party.

26.  This includes Article 15 of the Universal Declaration of Human Rights, 1948,
which states:
(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.”

27.  Article 5 of the International Convention on Elimination of All Forms of Racial
Discrimination, 1965, obliges the parties to guarantee the right of everyone,
without distinction as to race, colour, national or ethnic origin, in the
enjoyment of the right to participate in elections and the right to nationality,
among many others.

28. GUIDE-LINES TOWARDS ACQUISITION OF
INDIAN CITIZENSHIP
(A) Citizenship by virtue of Article 5/6 of the Constitution of India:-
Any person who fulfils any of the following conditions and if he/she has not
acquired any foreign nationality and/or foreign Passport, may apply for the
Citizen of India under Article 5(a)/5(b)/5(c) of the Constitution of India.
The application should be addressed to the Collector/ District Magistrate within
whose jurisdiction he/ she ordinarily resident or to the Additional Secretary,
Home Department, Foreigners Branch, Citizenship Cell, Block-V, Ground Floor,
Writers’ Buildings, Kolkata700001 for transmission of the same to the Central
Government through the Home Department, Foreigners Branch, Citizenship Cell
of the State Government.

29. The Conditions are as follows :-
(a) Article 5(a)- At the commencement of the constitution of India, the person
has his domicile in the territory of India and he was born in the territory of India.
(b) Article 5(b)- At the commencement of the constitution of India, the person
has his domicile in the territory of India and either of his parents was born in the
territory of India.
(c) Article 5(c) - At the commencement of the constitution of India, the person
has his domicile in the territory of India for not less than five years immediately
preceding commencement of the Constitution of India.

30. Citizenship
 Population
 All person - Art 14. (Basic Right)
 Citizen - Art. 15 (Right against Discrimination)
 Minor - Art. 29 (Sprcific Right)

31. Constitutional Provisions relating to
Citizenship

32. Part – 2 of Constitution
Article 5 -11 (26th Jan 1950)
a) Person domicile in India
b) Person who migrated from Pakistan
c) Person who migrated to Pakistan
d) Person living abroad

33. Article 5
1. Citizenship by Domicile
Domicile (Intention)
And
(any one of these )
1. Born in India
2. Any of parents are born in India
3. Residing in India for 5 years immediately before 26th Jan 1950, i.e., 1945

34.  D.P. Joshi v State of Madya Pradesh
Whole of India has just one domicile, states doesn't have their own domicile.

35. Art. 6
 Persons who migrated from Pakistan to India
Before 19th July 1948 after 19th July 1948
Permit system was issued on this date.

36.  Before 19th July 1948
 Would be considered as Indian Citizen if (two conditions)
1. he/ his parents/ grandparents were born in India
2. He should have resided in India since the date of his migration.

37. Article 6
After 19th July 1948
 He/his parents/his grandparents were born in India.
 He has returned to India under Permit Settlement.
 He had resided in India after re-migration for at-least 6 months.
 He had submitted an application for registration to officer.
 He has been registered as a Citizen by such Officer.

38. Difference between Art. 5 and
Art. 6

39. Article -7 (Over-rides)
Citizenship of person who migrated to Pakistan
 India ----------------------- Pakistan (after 1st March 1947)
Will not be termed as Indian Citizen

40. CONDITIONS
 India -----------------------Pakistan (went but came back to India)
 He/his parents/his grandparents were born in India.
 He has returned to India under Permit Settlement.
 He had resided in India after re-migration for at-least 6 months.
 He had submitted an application for registration to officer.
 He has been registered as a Citizen by such Officer.

41. Article 8 (Abroad)
 Citizenship or persons of Indian Origin residing Outside india
1. He/his parents/his grandparents were born in undivided India.
2. Registered as a Citizen of INDIA in that country by Diplomatic or Consular
Representative of India.

42. Art 9 – Not deemed to be Citizen
 Voluntarily acquires Foreign State Citizenship, then cant demand Indian
Citizenship under Art 5, 6 and 8.

43. Art -10 – Continuance of Citizenship
 Indian Citizenship, if acquired, it would continue
 But this right is subject to Laws passed by the parliament.

44. Art 11- Parliament to regulate the Right
of citizenship
 After 26th January 1950
1. Law making power
2. Restrict or revoke Art 5, Art 6 and Art 8

45. Citizenship Act, 1955
Termination and Acquisition
Acquisition Loss
 Birth Renunciation
 Descent Termination
 Registration Deprivation
 Incorporation
 Naturalisation

46. Amendments in CA, 1955
 1. till 1986 - Birth is enough (Born in India)
 2. 1986 – amendment - BORN in India (father needs to be Indian citizen)
 3. 1992 - Birth + one of the parent is Indian (either of the Parent
 4. 2003 – “Illegal Immigrant” (IM) was introduced.
 5. 2005 – Overseas Citizen of India (OCI)
 6. 2019 – recognizing few religions.
“Naturalisation” + “Registration” was not for IM

47. Sec 3. Citizenship by birth
 26 Jan 1950 -----------------------1st July 1987 (Automatically)
 1st July 1987 ------------------------3rd Dec 2003 (Father – citizen )
 3rd Dec 2003 (both Parents/ 1 Parent + 1 Parent is not IM)

48. Illegal Migrants
 Sec 2(1) (b) – foreigner coming to India without valid passport or travel
documents, exceeding his/her stay

49. Sec 4 – Citizenship by Descent
 Born outside India, but can acquire Indian Citizenship
 26th Jan 1950 ------------10th Dec 1992 (if father is Indian)
 10th 1992 ----------------- 3rd Dec 2004 (Mother/Father) Gender Neutrality
 3rd Dec 2004 – within one year of the birth, the Parents have to register with
Indian Consulate with the undertaking that the minor child is not having the
passport of any other nation.

50.  Sec 3 and Sec 4 = only Limited so widen the scope we have Sec 5
 Sec 5 – Registration
(PIO) – birth of parents in undivided India.
 Acquiring the Indian Citizenship By way of registration

51. Sec 6. – Naturalisation
 Not subject of a country where Indians are prevented
 All other foreigners may become Indian citizens by naturalisation after
residing in the country for at least 11 of the previous 14 years, with an
additional 12 months of residence immediately preceding an application, a
total of 12 years.
 Anyone acquiring Indian citizenship through either naturalisation or
registration must renounce their previous nationalities.
 Between 2010 and 2019, about 21,000 people naturalised as Indian citizen

52.  Serving Govt. of India
 Good Character
 Knowledge of language – 8th
 Date of application – 2022
 2021 – 2022 (continuance of residence )
 2008 -2022 (11 Year)

53. Distinguised Services
 Science
 Art
 Philosophy
 Literature
 Peace
 Human Rights

54.  Sec 7 – Incorporation
 Incorporation Of Territory

55. Loss
 SEC 8 –Makes a declaration
 Sec 9 – Voluntarily Acquires another cItizenship
 Sec 10 – Compulsory Termination by Govt.
1) Fraud – if citizenship is taken by fraud
2) Disloyal
3) Enemy communicate
4) Jail for 2years (with 5 years of Indian Citizenship)

56.  Any person deemed to be an illegal migrant is typically barred from obtaining
citizenship through both naturalisation and registration.
 However, migrants from Afghanistan, Bangladesh, or Pakistan who belong to
selected religious communities (Hindus, Sikhs, Buddhists, Jains, Parsis, or
Christians) and arrived in India prior to 2015 are not considered illegal
migrants. They are eligible for naturalisation with a reduced residence
requirement(3R); at least five years of residence during the previous 14-year
period, along with the additional 12 months of residence immediately
preceding an application.

57. Relinquish
 Indian citizenship can be voluntarily relinquished by any person over the age
of 18. Minor children of a person who gave up citizenship also cease to be
citizens. On reaching adult age, these children have the option of resuming
Indian citizenship within one year.
 Before 2003, relinquishment required holding nationality of another country,
and all married women were considered to be of full age for the purposes of
giving up citizenship regardless of their actual age. Minor children lost
citizenship only if their fathers (not mothers) relinquished that status until
1992.

58.  Any Indian citizen who permanently settles in Pakistan or Bangladesh, or who
voluntarily acquires citizenship of another country at any time automatically
loses Indian citizenship.
 Between 2015 and 2019, about 670,000 people lost their Indian citizenship
either through renunciation or automatic loss after acquiring a foreign
nationality.

59. Overseas citizenship
Overseas Citizenship of India and Non-resident Indian and person of Indian origin
Former Indian citizens and descendants of citizens have been eligible for
overseas citizenship since its creation in 2003. This status gives its holders a
lifelong entitlement to live and work in the country but they cannot vote in
elections, stand for public office, and are subject to restrictions on entry into
protected and restricted areas.

60.  Overseas citizenship is a status created specifically to work around the
constitutional prohibition on holding multiple nationalities; it is not
considered a full form of Indian citizenship.
 All persons who (or whose parents or grandparents) have ever been citizens
of Pakistan or Bangladesh are permanently ineligible for overseas
citizenship.

61. What is Overseas Citizenship of India? Is
it Not Dual Citizenship
 Person of Indian Origin who migrated from India to other countries except Pakistan and
Bangladesh can be called an overseas citizen of India, provided their country allow OCI
citizenship.
The following Categories of persons (except Pakistan and Bangladesh) are eligible to apply under
OCI scheme:
 Who is a citizen of another country but was a citizen of India at the time of, or at any time
after, the commencement of the constitution.
 Who is a citizen of another country but was eligible to become a citizen of India at the time
of the commencement of the constitution.
 Who is a citizen of another country but belonged to a territory that became part of India
after the 15th day of August, 1947.
 Who is a child or a grandchild or a great grandchild of such a citizen.

62.  OCI is not equivalent to Dual citizenship. Overseas citizen of India do not
enjoy the following right –
 They do not have the right to vote.
 They cannot hold an Indian passport.
 They are not eligible for constitutional posts.
 They cannot be a member of legislature of any hous

63.  No European country grants unconditional birthright
citizenship to the children of immigrants. The children of
immigrants (second generation) in many European
countries also must acquire citizenship; access to
citizenship occurs only after fulfilling certain residency or
age requirements. For example, second-generation
children born in France of two non-French parents cannot
become French citizens until they turn 18, provided they
have resided in France for at least five years.